Nathan Baer, Respondent, v. George Hoffman, Appellant, Impleaded with Michael J. Kenny and Thomas J. Kenny

Nathan Baer, Respondent, v. George Hoffman, Appellant, Impleaded with Michael J. Kenny and Thomas J. Kenny. First Department, May 3, 1912. Bills and notes — action against indorser — complaint—due presentment — notice of dishonor — waiver. Where the complaint in an action against the indorser of a promissory note alleges due presentment and refusal of payment and that the note was protested for non-payment and that the defendant thereafter, with full knowledge, by making payments on the note, and promising to pay the balance, waived due notice of dishonor, there is no charge of a waiver of due presentment, and the plaintiff must prove such presentment. Appeal by the defendant, George Hoffman, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of December, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff entered on the 23d day of June, 1911, and an order of said City Court entered on the 26th day of June, 1911, and also (as stated in. the notice of appeal) from said judgment and order of the City Court. Leo Fassler, for the appellant. Charles H. Griffiths, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Appellant is sued as indorser upon a promissory note which by its terms was payable at the Hudson Trust Company. The complaint alleges that when the said note by its terms became due and payable it was duly presented - for payment according to the tenor thereof, and payment was duly demanded, which was refused, and thereupon said note was duly protested for such non-payment. It is further alleged “that thereafter notice of the presentment, demand, non-payment and protest of said note as aforesaid was not given to the defendants within the time required by law, to charge the indorser thereof, to wit, the defendant George Hoffman, but that notwithstanding the omission to give such notice, the said defendant Hoffman, with knowledge of such omission did thereafter make payments on account of the said note, and promised the then holder thereof (the American Exchange Cigar Co.) to pay the balance remaining due after crediting such payments, and that by reason thereof the said defendant Hoffman waived the notice of dishonor and the omission to give same.” All these allegations are denied and the plaintiff put to his proof. It is clear that the complaint alleges due presentment and that the only waiver alleged is of due notice of dishonor. This does not include waiver of due presentment. It was, therefore, incumbent upon plaintiff to prove due presentment,, which means that he should have proven that on the date on which the note fell due it was presented for payment at the Hudson Trust Company where by its tenor it was payable. (Neg. Inst. Law [Gen. Laws, chap. 50; Laws of 1897, chap. 612], ■§ 133, as ámd. by Laws of 1898, chap. 336; Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 133.) This proof the plaintiff did not make and thereby failed to prove the case alleged in the complaint. It must, therefore, be assumed, for the purposes of this appeal, that due presentment and demand was not made and that the indorser was thereby released, as well as by the subsequent failure to give him due notice of dishonor. The evidence at most might have justified a finding that the appellant had waived the omission to give him due notice of dishonor, and this is all that the complaint alleges that he waived. It is not alleged that he waived due presentment and demand, nor does it appear that he knew that there had been any omission in this regard. He could not be held to have waived that of which he was ignorant. The judgment and determination appealed from must he reversed and a new trial granted, with costs to the appellant in all courts to abide the event. Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred. Determination, judgment and order reversed arid new trial ordered, costs to appellant in all courts to abide event.